Did Flynn Lie and Why Did Mueller Charge Him With Lying?
By Alan Dershowitz
December 2, 2017
The charge to which retired Lt. Gen. Michael Flynn has
pleaded guilty may tell us a great deal about the Robert Mueller investigation.
The first question is, why did Flynn lie? People who lie to
the FBI generally do so because, if they told the truth, they would be admitting
to a crime. But the two conversations that Flynn falsely denied having were not
criminal. He may have believed they were criminal but, if he did, he was wrong.
Consider his request to Sergey Kislyak, the Russian
ambassador to the U.S., to delay or oppose a United Nations Security Council
vote on an anti-Israel resolution that the outgoing Obama administration refused
to veto. Not only was that request not criminal, it was the right thing to do.
President Obama’s unilateral decision to change decades-long American
policy by not vetoing a perniciously one-sided anti-Israel resolution was
opposed by Congress and by most Americans. It was not good for America, for
Israel or for peace. It was done out of Obama’s personal pique against Israeli
Prime Minister Benjamin Netanyahu rather than on principle.
Many Americans of both parties, including me, urged the
lame-duck Obama not to tie the hands of the president-elect by allowing the
passage of a resolution that would make it more difficult to achieve a
negotiated peace in the Middle East.
As the president-elect, Donald
Trump was constitutionally and politically entitled to try to protect his
ability to broker a fair peace between the Israelis and Palestinians by urging
all members of the Security Council to vote against or delay the enactment of
the resolution. The fact that such efforts to do the right thing did not succeed
does not diminish the correctness of the effort. I wish it had succeeded. We
would be in a better place today.
Some left-wing pundits, who know better, are trotting out
the Logan Act, which, if it were the law, would prohibit private citizens
(including presidents-elect) from negotiating with foreign governments. But this
anachronistic law hasn’t been used for more than 200 years. Under the
principle of desuetude — a legal doctrine that prohibits the selective
resurrection of a statute that has not been used for many decades — it is
dead-letter. Moreover, the Logan Act is unconstitutional insofar as it prohibits
the exercise of free speech.
If it were good law, former Presidents Reagan and Carter
would have been prosecuted: Reagan for negotiating with Iran’s ayatollahs when
he was president-elect, to delay releasing the American hostages until he
was sworn in; Carter for advising Palestinian leader Yasser Arafat to reject
former President Clinton’s peace offer in 2000-2001. Moreover, Jesse Jackson,
Jane Fonda, Dennis Rodman and others who have negotiated with North Korea and
other rogue regimes would have gone to prison.
So there was nothing criminal about Flynn’s request of
Kislyak, even if he were instructed to do so by higher-ups in the Trump
transition team. The same is true of his discussions regarding sanctions. The
president-elect is entitled to have different policies about sanctions and to
have his transition team discuss them with Russian officials.
This is the way The New York Times has put it: “Mr.
Flynn’s discussions with Sergey I. Kislyak, the Russian ambassador, were part
of a coordinated effort by Mr. Trump’s aides to create foreign policy before
they were in power, documents released as part of Mr. Flynn’s plea agreement
show. Their efforts undermined the existing policy of President Barack
Obama and flouted a warning from a senior Obama administration official to
stop meddling in foreign affairs before the inauguration.”
If that characterization is accurate, it demonstrates
conclusively that the Flynn conversations were political and not criminal.
Flouting a warning from the Obama administration to stop meddling may be a
political sin (though some would call it a political virtue) but it most
assuredly is not a crime.
So why did Flynn lie about these conversations, and were his
lies even material to Mueller’s criminal investigation if they were not about
The second question is why did Mueller charge Flynn only
with lying? The last thing a prosecutor ever wants to do is to charge a key
witness with lying.
A witness such as Flynn who has admitted he lied —
whether or not to cover up a crime — is a tainted witness who is unlikely to
be believed by jurors who know he’s made a deal to protect himself and his
son. They will suspect that he is not only “singing for his supper” but that
he may be “composing” as well — that is, telling the prosecutor what he
wants to hear, even if it is exaggerated or flat-out false. A “bought”
witness knows that the “better” his testimony, the sweeter the deal he will
get. That’s why prosecutors postpone the sentencing until after the witness
has testified, because experience has taught them that you can’t “buy” a
witness; you can only “rent “ them for as long as you have the sword of
Damocles hanging over them.
So, despite the banner headlines calling the Flynn guilty
plea a “thunderclap,” I think it may be a show of weakness on the part of
the special counsel rather than a sign of strength. So far he has had to
charge potential witnesses with crimes that bear little or no relationship to
any possible crimes committed by current White House incumbents. Mueller would
have much preferred to indict Flynn for conspiracy or some other crime directly
involving other people, but he apparently lacks the evidence to do so.
I do not believe he will indict anyone under the Logan Act.
If he were to do so, that would be unethical and irresponsible. Nor do I think
he will charge President Trump with any crimes growing out of the president’s
exercise of his constitutional authority to fire the director of the FBI or to
ask him not to prosecute Flynn.
The investigation will probably not end quickly, but it may
end with, not a thunderclap, but several whimpers.